HUD’s Office of Fair Housing and Equal Opportunity (FHEO) sent a Memorandum to all of its Office Directors and Regional Directors on February 9. The Memorandum’s purpose is to provide guidance when assessing claims of housing discrimination by domestic violence victims under the Fair Housing Act of 1969. The Memorandum discusses legal theories behind such claims and provides examples of recent court cases.
The Fair Housing Act guidance is useful as an advocacy tool in protecting victims of domestic violence from housing discrimination in the private housing market. Use of the Violence Against Women Act of 2005 (VAWA) is limited because it only protects women in public housing, voucher, and Section 8 project-based programs. In addition, VAWA does not provide an explicit private cause of action to women who are illegally evicted, nor does it provide for damages.
VAWA has three key features:
· Prohibiting denial of assistance or admission to those federal assistance programs for victims of domestic violence, dating violence, or stalking.
· Prohibiting termination of assistance, tenancy, or occupancy based on criminal activity directly related to domestic violence engaged in by a member of the tenant’s household or a guest if the tenant or immediate member of the tenant’s family is a victim.
· Prohibiting consideration of incidents or threats of abuse as “good cause” for terminating assistance, tenancy, or occupancy.
The Memorandum explains that there are three legal theories that could be considered under the Fair Housing Act to prevent discrimination relating to domestic violence:
· Direct evidence. In some cases landlords might have policies that explicitly treat women differently than men. For example, a landlord might tell a female domestic violence victim that there is a policy of denying leases to women with domestic violence histories because they always go back to the abuser.
· Unequal treatment. For example, a landlord might have a policy of evicting households for criminal activity and apply it selectively against women who have been abused, but not evict the male abuser.
· Disparate impact. In some situations a policy, procedure, or practice might seem to be neutral but in effect disproportionately affect domestic violence victims.
For each of these legal theories the Memorandum suggests practical steps to consider taking in order to make the case for the theory. The Memorandum also provides abstracts from ten court decisions.
The February 9 FHEO Memorandum is at http://www.nlihc.org/doc/FHEO_Memorandum.pdf